Exhibit 99.a.
WESTERN ASSET/CLAYMORE U.S. TREASURY INFLATION PROTECTED
SECURITIES FUND 3
AGREEMENT AND DECLARATION OF TRUST
APRIL 7, 2004
WESTERN ASSET/CLAYMORE U.S. TREASURY INFLATION PROTECTED
SECURITIES FUND 3
AGREEMENT AND DECLARATION OF TRUST
AGREEMENT AND DECLARATION OF TRUST made at Boston, Massachusetts, this
7th day of April, 2004, by the Trustees hereunder, and by the holders of shares
of beneficial interest to be issued hereunder as hereinafter provided.
WITNESSETH that
WHEREAS, this Trust has been formed to carry on the business of an
investment company; and
WHEREAS, the Trustees have agreed to manage all property coming into
their hands as trustees of a Massachusetts business trust in accordance with the
provisions hereinafter set forth.
NOW, THEREFORE, the Trustees hereby declare that they will hold all
cash, securities and other assets which they may from time to time acquire in
any manner as Trustees hereunder IN TRUST to manage and dispose of the same upon
the following terms and conditions for the pro rata benefit of the holders from
time to time of Shares in this Trust as hereinafter set forth.
ARTICLE I
NAME AND DEFINITIONS
NAME
SECTION 1. This Trust shall be known as "Western Asset/Claymore
U.S. Treasury Inflation Protected Securities Fund 3" and the Trustees shall
conduct the business of the Trust under that name or any other name as they may
from time to time determine.
DEFINITIONS
SECTION 2. Whenever used herein, unless otherwise required by the
context or specifically provided:
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(a) The "Trust" refers to the Massachusetts business trust
established by this Declaration, as amended or restated from time to
time;
(b) "Trustees" refers to the Trustees of the Trust named
herein or elected or appointed in accordance with Article IV;
(c) "Shares" means the equal proportionate transferable units
of interest into which the beneficial interest in the Trust shall be
divided from time to time or, if more than one class or series of
Shares is authorized by the Trustees, the equal proportionate
transferable units into which each class or series of shares shall be
divided from time to time;
(d) "Shareholder" means a record owner of Shares;
(e) The "1940 Act" refers to the Investment Company Act of
1940, and the rules or regulations thereunder or applicable orders of
the Securities and Exchange Commission, as such statute, rules,
regulations or orders may be amended from time to time;
(f) The terms "Affiliated Person", "Interested Person" and
"Principal Underwriter" shall have the applicable meanings given them
in the 1940 Act;
(g) "Declaration" shall mean this Agreement and Declaration of
Trust, as amended or restated from time to time;
(h) "Bylaws" shall mean the Bylaws of the Trust as amended or
restated from time to time;
(i) The term "class," when used in connection with Shares,
refers to the division of Shares into two or more classes as provided
in Article III, Section 1 hereof; the term "Class," when used in
connection with the Trustees, refers to the division of Trustees into
two or more Classes as provided in Article IV, Section 1 hereof;
(j) The term "series" or "series of Shares" refers to the
division of Shares representing any class into two or more series as
provided in Article III, Section 1 hereof; and
(k) The term "Continuing Trustee" shall have the meaning given
to such term in Article IV, Section 2 hereof.
ARTICLE II
PURPOSE
The purpose of the Trust is to provide investors a managed investment
primarily in securities, debt instruments and other instruments and rights of a
financial character and to carry
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on such other business as the Trustees may from time to time determine pursuant
to their authority under this Declaration.
ARTICLE III
SHARES
DIVISION OF BENEFICIAL INTEREST
SECTION 1. The Trustees may, without Shareholder approval,
authorize one or more classes of Shares (which classes may be divided into two
or more series), Shares of each such class or series having such par value and
such preferences, voting powers, terms of redemption, if any, and special or
relative rights or privileges (including conversion rights, if any) as the
Trustees may determine. Subject to applicable law, the Trustees may, without
Shareholder approval, authorize the Trust to issue subscription or other rights
representing interests in Shares to existing Shareholders or other persons
subject to such terms and conditions as the Trustees may determine. The number
of Shares of each class or series authorized shall be unlimited, except as the
Bylaws may otherwise provide, and the Shares so authorized may be represented in
part by fractional shares. The Trustees may from time to time divide or combine
the Shares of any class or series into a greater or lesser number without
thereby changing the proportionate beneficial interest in the class or series.
OWNERSHIP OF SHARES
SECTION 2. The ownership of Shares shall be recorded on the books
of the Trust or a transfer or similar agent of the Trust. Except as provided in
the Bylaws or as the Trustees may otherwise determine from time to time, no
certificates certifying the ownership of Shares shall be issued. The Trustees
may make such rules as they consider appropriate for the issuance of Share
certificates, the transfer of Shares and similar matters. The record books of
the Trust as kept by the Trust or any transfer or similar agent, as the case may
be, shall be conclusive as to who are the Shareholders of each class and series
and as to the number of Shares of each class and series held from time to time
by each Shareholder.
INVESTMENTS IN THE TRUST
SECTION 3. The Trustees shall accept investments in the Trust from
such persons and on such terms and, subject to any requirements of law, for such
consideration, which may consist of cash or tangible or intangible property or a
combination thereof, as the Trustees or the Bylaws from time to time authorize.
NO PREEMPTIVE RIGHTS
SECTION 4. Shareholders shall have no preemptive or other right to
receive, purchase or subscribe for any additional Shares or other securities
issued by the Trust.
DERIVATIVE CLAIMS
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SECTION 5. No Shareholder shall have the right to bring or maintain
any court action, proceeding or claim on behalf of the Trust or any series or
class of Shares without first making demand on the Trustees requesting the
Trustees to bring or maintain such action, proceeding or claim. Such demand
shall not be excused under any circumstances, including claims of alleged
interest on the part of the Trustees, unless the plaintiff makes a specific
showing that irreparable nonmonetary injury to the Trust or series or class of
Shares would otherwise result. Such demand shall be mailed to the Secretary of
the Trust at the Trust's principal office and shall set forth with particularity
the nature of the proposed court action, proceeding or claim and the essential
facts relied upon by the Shareholder to support the allegations made in the
demand. The Trustees shall consider such demand within 45 days of its receipt by
the Trust. In their sole discretion, the Trustees may submit the matter to a
vote of Shareholders of the Trust or a series or class of Shares, as
appropriate. Any decision by the Trustees to bring, maintain or settle (or not
to bring, maintain or settle) such court action, proceeding or claim, or to
submit the matter to a vote of Shareholders, shall be binding upon the
Shareholders. Any decision by the Trustees to bring or maintain a court action,
proceeding or suit on behalf of the Trust or a series or class of Shares shall
be subject to the right of the Shareholders under Article V hereof to vote on
whether or not such court action, proceeding or suit should or should not be
brought or maintained.
DIRECT CLAIMS
SECTION 6. No group of Shareholders shall have the right to bring
or maintain a direct action or claim for monetary damages against the Trust or
the Trustees predicated upon an express or implied right of action under this
Declaration or the 1940 Act (excepting rights of action permitted under section
36(b) of the 1940 Act), nor shall any single Shareholder, who is similarly
situated to one or more other Shareholders with respect to the alleged injury,
have the right to bring such an action, unless such group of Shareholders or
such Shareholder has obtained authorization from the Trustees to bring the
action. The requirement of authorization shall not be excused under any
circumstances, including claims of alleged interest on the part of the Trustees.
A request for authorization shall be mailed to the Secretary of the Trust at the
Trust's principal office and shall set forth with particularity the nature of
the proposed court action, proceeding or claim and the essential facts relied
upon by the group of Shareholders or Shareholder to support the allegations made
in the request. The Trustees shall consider such request within 45 days of its
receipt by the Trust. In their sole discretion, the Trustees may submit the
matter to a vote of Shareholders of the Trust or series or class of Shares, as
appropriate. Any decision by the Trustees to settle or to authorize (or not to
settle or not to authorize) such court action, proceeding or claim, or to submit
the matter to a vote of Shareholders, shall be binding upon the group of
Shareholders or Shareholder seeking authorization. Any decision by the Trustees
to authorize a court action, proceeding or suit by a group of Shareholders shall
be subject to the right of the Shareholders under Article V hereof to vote on
whether or not such court action, proceeding or suit should or should not be
brought or maintained.
STATUS OF SHARES AND LIMITATION OF PERSONAL LIABILITY
SECTION 7. Shares shall be deemed to be personal property giving
only the rights provided in this Declaration or the Bylaws. Every Shareholder by
virtue of having become a
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Shareholder shall be held to have expressly assented and agreed to the terms of
this Declaration and the Bylaws and to have become a party hereto and thereto.
The death of a Shareholder during the continuance of the Trust shall not operate
to terminate the same nor entitle the representative of any deceased Shareholder
to an accounting or to take any action in court or elsewhere against the Trust
or the Trustees, but only to the rights of said decedent under this Trust.
Ownership of Shares shall not entitle the Shareholder to any title in or to the
whole or any part of the Trust property or right to call for a partition or
division of the same or for an accounting, nor shall the ownership of Shares
constitute the Shareholders partners. Neither the Trust nor the Trustees, nor
any officer, employee or agent of the Trust, shall have any power to bind
personally any Shareholder, nor except as specifically provided herein to call
upon any Shareholder for the payment of any sum of money or assessment
whatsoever other than such as the Shareholder may at any time personally agree
to pay.
ARTICLE IV
THE TRUSTEES
NUMBER AND CLASSES OF TRUSTEES AND TERM OF OFFICE
SECTION 1. Subject to the voting powers of one or more classes or
series of Shares as set forth in the Bylaws, the number of Trustees shall be
such number as shall be fixed from time to time by a majority of the Trustees;
PROVIDED, HOWEVER, that the number of Trustees shall in no event be less than
three (3) from and after the date when Shares are first sold pursuant to an
initial registered public offering. The Trustee or Trustees who are signatories
to this Declaration as of the date hereof and such other persons as the Trustee
or Trustees then in office shall appoint (to fill a vacancy or otherwise) prior
to any sale of Shares pursuant to an initial registered public offering shall
each serve until the first meeting of Shareholders at which Trustees are elected
(or, if later, until the first meeting of Shareholders at which Trustees of the
Class to which such Trustee has been assigned are elected) and until his or her
successor is elected and qualified, or until he or she sooner dies, resigns,
retires or is disqualified or removed from office, subject in each case to the
Classes of Trustees and terms created pursuant to this Article IV.
An initial annual meeting of Shareholders or special meeting in lieu
thereof shall be called to be held not more than fifteen months after Shares are
first sold pursuant to an initial registered public offering; subsequent annual
meetings of Shareholders or special meetings in lieu thereof (each an "annual
meeting") shall be held as specified in the Bylaws. Prior to any sale of Shares
pursuant to an initial registered public offering, the Trustees shall classify
themselves by resolution, with respect to the time for which they severally hold
office, into the following three classes: Class I, whose term expires at the
initial annual meeting; Class II, whose term expires at the next succeeding
annual meeting after the initial annual meeting (the "second annual meeting");
and Class III, whose term expires at the next succeeding annual meeting after
the second annual meeting. Each Class shall consist, as nearly as may be
possible, of one-third of the total number of Trustees constituting the entire
Board of Trustees. At each annual meeting beginning with the initial annual
meeting, the successors of the Class of Trustees whose term expires at that
meeting shall be elected to hold office for a term expiring at the annual
meeting held in the third year following the year of their election, with each
Trustee
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holding office until the expiration of the term of the relevant Class and the
election and qualification of his or her successor, or until he or she sooner
dies, resigns, retires, or is disqualified or removed from office.
The Trustees may also determine by resolution those Trustees in each
Class that shall be elected by Shareholders of a particular class of Shares
(E.G., by a class of preferred Shares issued by the Trust) prior to the initial
registered public offering of such class of Shares. If the number of Trustees is
changed, any increase or decrease shall be apportioned among the Classes, as of
the annual meeting of Shareholders next succeeding any such change, so as to
maintain a number of Trustees in each Class as nearly equal as possible, with
the result that, to the extent a Trustee is assigned to a new Class, his or her
term as Trustee shall coincide with that of his or her newly assigned Class. No
reduction in the number of Trustees shall have the effect of removing any
Trustee from office prior to the expiration of his or her term unless the
Trustee is specifically removed pursuant to Section 3 of this Article at the
time of the decrease. Except as provided in this Section 1 or Section 3 of this
Article, after the initial registered public offering of the Shares, Trustees
shall be elected only at an annual meeting of Shareholders. Notwithstanding
anything herein to the contrary, a Trustee shall cease to be a Trustee only if
his or her successor is elected and qualified, or he or she sooner dies,
resigns, retires or is disqualified or removed from office.
CONTINUING TRUSTEE; DEFINITION
SECTION 2. For purposes of this Declaration and the Bylaws, the
term "Continuing Trustee" shall mean any member of the Board of Trustees who (a)
has been a member of the Board of Trustees for a period of at least thirty-six
months (or since immediately after the initial registered public offering of the
Trust's Shares, if less than thirty-six months); (b) was nominated to serve as a
member of the Board of Trustees by a majority of the Continuing Trustees then
members of the Board of Trustees; or (c) prior to the first sale of Shares
pursuant to an initial registered public offering only, serves as a Trustee.
VACANCIES; RESIGNATION; REMOVAL
SECTION 3. From and after the date when Shares are first sold
pursuant to an initial registered public offering and subject to any voting
powers of one or more classes or series of Shares as set forth in this
Declaration or in the Bylaws or by resolution of the Board of Trustees, any
vacancies occurring in the Board of Trustees may be filled by the Trustees as
set forth below. Prior to the date when Shares are first sold pursuant to an
initial registered public offering, subject to any limitations imposed by the
1940 Act or other applicable law, any vacancies occurring in the Board of
Trustees may be filled by the Trustees without any action by or meeting of
Shareholders.
From and after the date when Shares are first sold pursuant to an
initial registered public offering and subject to any voting powers of one or
more classes or series of Shares as set forth in this Declaration or in the
Bylaws or by resolution of the Board of Trustees, and subject to any
limitations imposed by the 1940 Act or other applicable law, any vacancy
occurring in the Board of Trustees that results from an increase in the
number of Trustees may be filled by a majority of the entire Board of
Trustees, and any other vacancy occurring in the Board of Trustees may be
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filled by a majority of the Trustees then in office, whether or not
sufficient to constitute a quorum, or by a sole remaining Trustee; PROVIDED,
HOWEVER, that if the Shareholders of any class or series of Shares are
entitled separately to elect one or more Trustees, a majority of the
remaining Trustees elected by that class or series or the sole remaining
Trustee elected by that class or series may fill any vacancy among the number
of Trustees elected by that class or series. A Trustee elected by the Board
of Trustees (or a group of Trustees or a single Trustee, as the case may be,
as provided herein) to fill any vacancy occurring in the Board of Trustees
shall serve until the next annual meeting of Shareholders and until his
successor shall be elected and shall qualify, subject, however, to prior
death, resignation, retirement, disqualification or removal from office. At
any annual meeting of Shareholders, any Trustee elected to fill any vacancy
occurring in the Board of Trustees that has arisen since the preceding annual
meeting of Shareholders (whether or not any such vacancy has been filled by
election of a new Trustee by the Board of Trustees (or a group of Trustees or
a single Trustee, as the case may be, as provided herein)) shall hold office
for a term which coincides with the remaining term of the Class of Trustee to
which such office was previously assigned, if such vacancy arose other than
by an increase in the number of Trustees, and until his successor shall be
elected and shall qualify. In the event such vacancy arose due to an increase
in the number of Trustees, any Trustee so elected to fill such vacancy at an
annual meeting shall hold office for a term which coincides with that of the
Class of Trustee to which such office has been apportioned as heretofore
provided, and until his successor shall be elected and shall qualify or until
he or she sooner dies, resigns, retires, or is disqualified or removed from
office.
Any Trustee may resign his trust or retire as a Trustee (without need
for prior or subsequent accounting except in the event of removal) by an
instrument in writing signed by him and delivered to the President, Secretary or
a Trustee of the Trust (or, if prior to any sale of Shares pursuant to an
initial registered public offering, delivered to the remaining Trustee or
Trustees), and such resignation or retirement shall be effective upon such
delivery, or at a later date according to the terms of the instrument. Subject
to any voting powers of one or more classes or series of Shares as set forth in
this Declaration or in the Bylaws, any Trustee may be removed from office only
for "Cause" (as hereinafter defined) and only (i) by action of at least
seventy-five percent (75%) of the outstanding Shares of the classes or series of
Shares entitled to vote for the election of such Trustee, at a meeting called
for the purpose, or (ii) by written instrument, signed by at least seventy-five
percent (75%) of the remaining Trustees, specifying the date when such removal
shall become effective. "Cause" for these purposes shall require willful
misconduct, dishonesty or fraud on the part of the Trustee in the conduct of his
or her office or such Trustee being convicted of a felony.
EFFECT OF DEATH, RESIGNATION, ETC. OF A TRUSTEE
SECTION 4. The death, declination, resignation, retirement,
removal, disqualification or incapacity of the Trustees, or any one of them,
shall not operate to annul the Trust or to revoke any existing agency created
pursuant to the terms of this Declaration.
POWERS
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SECTION 5. Subject to the provisions of this Declaration, the
business of the Trust shall be managed by the Trustees, and they shall have all
powers necessary or convenient to carry out that responsibility. Without
limiting the foregoing, the Trustees may adopt Bylaws not inconsistent with this
Declaration providing for the conduct of the business of the Trust and may amend
and repeal them to the extent and as provided in Article IX, Section 8(c) of
this Declaration. Subject to the voting power of one or more classes or series
of Shares as set forth in this Declaration or in the Bylaws or by resolution of
the Board of Trustees, the Trustees may fill vacancies in or add to their
number, including vacancies resulting from increases in their number, and may
elect and remove such officers and appoint and terminate such agents as they
consider appropriate; they may appoint from their own number, and terminate, any
one or more committees consisting of one or more Trustees, including an
executive committee which may, when the Trustees are not in session, exercise
some or all of the power and authority of the Trustees as the Trustees may
determine; they may appoint an advisory board, the members of which shall not be
Trustees and need not be Shareholders; they may employ one or more custodians of
the assets of the Trust and may authorize such custodians to employ
subcustodians and to deposit all or any part of such assets in a system or
systems for the central handling of securities; they may retain a transfer agent
or a shareholder servicing agent, or both, and provide for the distribution of
Shares by the Trust, through one or more principal underwriters or otherwise;
they may set record dates for the determination of Shareholders with respect to
various matters; and they may in general delegate such authority as they
consider desirable to any officer of the Trust, to any committee of the Trustees
and to any agent or employee of the Trust or to any such custodian or
underwriter.
Without limiting the foregoing, the Trustees shall have power and
authority:
(a) To invest and reinvest cash, and to hold cash uninvested;
(b) To sell, exchange, lend, pledge, mortgage, hypothecate,
write options on and lease any or all of the assets of the Trust;
(c) To vote or give assent, or exercise any rights of
ownership, with respect to stock or other securities or property; and
to execute and deliver proxies or powers of attorney to such person or
persons as the Trustees shall deem proper, granting to such person or
persons such power and discretion with relation to securities or
property as the Trustees shall deem proper;
(d) To exercise powers and rights of subscription or otherwise
which in any manner arise out of ownership of securities;
(e) To hold any security or property in a form not indicating
any trust, whether in bearer, unregistered or other negotiable form, or
in the name of the Trustees or of the Trust or in the name of a
custodian, subcustodian or other depository or a nominee or nominees or
otherwise;
(f) To the extent necessary or appropriate to give effect to
the preferences, special or relative rights or privileges of any
classes or series of Shares, to allocate assets,
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liabilities, income and expenses of the Trust to a particular class or
classes or series of Shares or to apportion the same among two or more
classes or series;
(g) To consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation or issuer,
any security of which is or was held in the Trust; and to consent to
any contract, lease, mortgage, purchase or sale of property by such
corporation or issuer, and to pay calls or subscriptions with respect
to any security held in the Trust;
(h) To join with other security holders in acting through a
committee, depositary, voting trustee or otherwise, and in that
connection to deposit any security with, or transfer any security to,
any such committee, depositary or trustee, and to delegate to them such
power and authority with relation to any security (whether or not so
deposited or transferred) as the Trustees shall deem proper, and to
agree to pay, and to pay, such portion of the expenses and compensation
of such committee, depositary or trustee as the Trustees shall deem
proper;
(i) To compromise, arbitrate or otherwise adjust claims in
favor of or against the Trust on any matter in controversy, including
but not limited to claims for taxes;
(j) To enter into joint ventures, general or limited
partnerships, limited liability companies, and any other combinations
or associations;
(k) To borrow funds;
(l) To endorse or guarantee the payment of any notes or other
obligations of any person; to make contracts of guaranty or suretyship,
or otherwise assume liability for payment thereof; and to mortgage and
pledge the Trust property or any part thereof to secure any of or all
of such obligations;
(m) To purchase and pay for entirely out of Trust property
such insurance as they may deem necessary or appropriate for the
conduct of the business of the Trust, including, without limitation,
insurance policies insuring the assets of the Trust and payment of
distributions and principal on its portfolio investments, and insurance
policies insuring the Shareholders, Trustees, officers, employees,
agents, investment advisers, subadvisers or managers, principal
underwriters or independent contractors of the Trust individually
against all claims and liabilities of every nature arising by reason of
holding, being or having held any such office or position, or by reason
of any action alleged to have been taken or omitted by any such person
as Shareholder, Trustee, officer, employee, agent, investment adviser,
subadviser or manager, principal underwriter or independent contractor,
including any action taken or omitted that may be determined to
constitute negligence, whether or not the Trust would have the power to
indemnify such person against such liability;
(n) To pay pensions for faithful service, as deemed
appropriate by the Trustees, and to adopt, establish and carry out
pension, profit-sharing, share bonus, share purchase, savings, thrift
and other retirement, incentive and benefit plans, trusts and
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provisions, including the purchasing of life insurance and annuity
contracts as a means of providing such retirement and other benefits,
for any or all of the Trustees, officers, employees and agents of the
Trust;
(o) To purchase, redeem or otherwise acquire Shares; and
(p) To engage in any other lawful act or activity in which
business corporations organized under the laws of The Commonwealth of
Massachusetts may engage.
The foregoing enumeration of the powers and authority of the Trustees
shall be read as broadly and liberally as possible, it being the intent of the
foregoing to in no way limit the Trustees' powers and authority.
The Trustees shall not in any way be bound or limited by any present or
future law or custom in regard to investments by trustees. Except as otherwise
provided herein or from time to time in the Bylaws, any action to be taken by
the Trustees may be taken by a majority of the Trustees present at a meeting of
the Trustees (a quorum being present), within or without Massachusetts. Except
as otherwise provided herein or from time to time in the Bylaws, any action to
be taken by the Trustees may be taken at a meeting held by means of a conference
telephone or other communications equipment by means of which all persons
participating in the meeting can hear each other at the same time and
participation by such means shall constitute presence in person at a meeting, or
by written consents of a majority of the Trustees then in office (or such
greater number as may be required by this Declaration, the Bylaws or applicable
law).
PAYMENT OF EXPENSES BY THE TRUST
SECTION 6. The Trustees are authorized to pay, or to cause to be
paid out of the principal or income of the Trust, or partly out of principal and
partly out of income, as they deem fair, all expenses, fees, charges, taxes and
liabilities incurred or arising in connection with the Trust, or in connection
with the management thereof, including, but not limited to, the Trustees'
compensation and such expenses and charges for the services of the Trust's
officers, employees, investment adviser, subadviser or manager, principal
underwriter, auditor, counsel, custodian, transfer agent, shareholder servicing
agent, and such other agents or independent contractors and such other expenses
and charges as the Trustees may deem necessary or proper to incur.
OWNERSHIP OF ASSETS OF THE TRUST
SECTION 7. Title to all of the assets of the Trust and each series
and class of Shares shall at all times be considered as vested in the Trustees.
ADVISORY, MANAGEMENT AND DISTRIBUTION
SECTION 8. The Trustees may, at any time and from time to time,
contract for exclusive or nonexclusive advisory and/or management services with
any corporation, trust,
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association or other organization (the "Manager"), every such contract to comply
with such requirements and restrictions as may be set forth in the Bylaws; and
any such contract may provide for one or more subadvisers or other agents who
shall perform all or part of the obligations of the Manager under such contract
and contain such other terms interpretive of or in addition to said requirements
and restrictions as the Trustees may determine, including, without limitation,
authority to determine from time to time what investments shall be purchased,
held, sold, or exchanged and what portion, if any, of the assets of the Trust
shall be held uninvested and to make changes in the Trust's investments. The
Trustees may also, at any time and from time to time, contract with the Manager
or any other corporation, trust, association or other organization, appointing
it exclusive or nonexclusive distributor or principal underwriter for the
Shares, every such contract to comply with such requirements and restrictions as
may be set forth in the Bylaws; and any such contract may contain such other
terms interpretive of or in addition to said requirements and restrictions as
the Trustees may determine.
The fact that:
(i) any of the Shareholders, Trustees or officers of the
Trust is a shareholder, director, officer, partner, trustee,
employee, manager, adviser, subadviser, principal underwriter or
distributor or agent of or for any corporation, trust,
association or other organization, or of or for any parent or
affiliate of any organization, with which an advisory,
subadvisory or management contract, or principal underwriter's or
distributor's contract or transfer, shareholder servicing or
other agency contract may have been or may hereafter be made or
that any such organization, or any parent or affiliate thereof,
is a Shareholder or has an interest in the Trust, or that
(ii) any corporation, trust, association or other
organization with which an advisory, subadvisory or management
contract or principal underwriter's or distributor's contract or
transfer, shareholder servicing or other agency contract may have
been or may hereafter be made also has an advisory, subadvisory
or management contract, or principal underwriter's or
distributor's contract or transfer, shareholder servicing or
other agency contract with one or more other corporations,
trusts, associations or other organizations, or has other
business or interests,
shall not affect the validity of any such contract or disqualify any
Shareholder, Trustee or officer of the Trust from voting upon or executing the
same or create any liability or accountability to the Trust or its Shareholders.
ARTICLE V
SHAREHOLDERS' VOTING POWERS AND MEETINGS
GENERAL
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SECTION 1. Except as otherwise provided in this Article V or
elsewhere in this Declaration, Shareholders shall have such power to vote as is
provided for in, and shall and may hold meetings and take actions pursuant to,
the provisions of the Bylaws.
VOTING POWERS AS TO CERTAIN TRANSACTIONS
SECTION 2.
(a) Except as otherwise provided in paragraph (b) of this Section 2,
the affirmative vote or consent of at least seventy-five percent (75%) of the
Trustees of the Trust and at least seventy-five percent (75%) of the Shares
outstanding and entitled to vote thereon shall be necessary to authorize any of
the following actions:
(i) the merger or consolidation or share exchange of the Trust
or any series or class of Shares with or into any other person or
company (including, without limitation, a partnership,
corporation, joint venture, business trust, common law trust or
any other business organization) or of any such person or company
with or into the Trust or any series or class of Shares;
(ii) the issuance or transfer by the Trust or any series or
class of Shares of any securities issued by the Trust or such
series or class to any other person or entity for cash,
securities or other property (or combination thereof), excluding
(i) sales of any securities of the Trust or a series or class in
connection with a public offering thereof and (ii) issuance of
securities of the Trust or a series or class pursuant to a
dividend reinvestment plan adopted by the Trustees;
(iii) a sale, lease, exchange, mortgage, pledge, transfer or
other disposition by the Trust or any series or class of Shares
(in one or a series of transactions in any twelve-month period)
to or with any person of any assets of the Trust or such series
or class having an aggregate fair market value of $1,000,000 or
more, except for transactions effected by the Trust or a series
or class in the ordinary course of business;
(iv) any Shareholder proposal as to specific investment
decisions made or to be made with respect to the assets of the
Trust or a series or class of Shares.
(b) Notwithstanding anything to the contrary in paragraph (a) of this
Section 2, so long as each action is approved by both a majority of the entire
Board of Trustees and seventy-five percent (75%) of the Continuing Trustees, and
so long as all other conditions and requirements, if any, provided for in the
Bylaws and applicable law have been satisfied, then no Shareholder vote or
consent shall be necessary or required to approve any of the actions listed in
paragraphs (a)(i), (a)(ii), (a)(iii) or (a)(iv) of this Section 2, except to the
extent such Shareholder vote or consent is required by the 1940 Act or other
applicable law.
CONVERSION TO OPEN-END COMPANY
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SECTION 3. Notwithstanding any other provisions in this Declaration
or the Bylaws, the conversion of the Trust or any class or series of Shares from
a "closed-end company" to an "open-end company," as those terms are defined in
Sections 5(a)(2) and 5(a)(1), respectively, of the 1940 Act (as in effect on the
date of this Declaration), together with any necessary amendments to this
Declaration to permit such a conversion, shall require the affirmative vote or
consent of at least seventy-five percent (75%) of each class of Shares
outstanding and entitled to vote on the matter, unless a majority of the
Trustees and seventy-five percent (75%) of the Continuing Trustees entitled to
vote on the matter approve such conversion and related actions. In the event of
such approval by the Trustees and the Continuing Trustees as referred to in the
preceding sentence, the 1940 Act shall govern whether and to what extent a vote
or consent of Shares shall be required to approve such conversion and related
actions. Any affirmative vote or consent required under this Section 3 shall be
in addition to the vote or consent of the Shareholders otherwise required by law
or by any agreement between the Trust and any national securities exchange.
ARTICLE VI
DISTRIBUTIONS AND DETERMINATION OF NET ASSET VALUE
DISTRIBUTIONS
SECTION 1. The Trustees may each year, or more frequently if they
so desire, but need not, distribute to the Shareholders of any or all classes or
series of Shares such income and gains, accrued or realized, as the Trustees may
determine, after providing for actual and accrued expenses and liabilities
(including such reserves as the Trustees may establish) determined in accordance
with good accounting practices and subject to the preferences, special or
relative rights or privileges of the various classes or series of Shares. The
Trustees shall have full discretion to determine which items shall be treated as
income and which items as capital and their determination shall be binding upon
the Shareholders. Distributions of income for each year or other period, if any
be made, may be made in one or more payments, which shall be in Shares, in cash
or otherwise and on a date or dates and as of a record date or dates determined
by the Trustees. At any time and from time to time in their discretion, the
Trustees may distribute to the Shareholders as of a record date or dates
determined by the Trustees, in Shares, in cash or otherwise, all or part of any
gains realized on the sale or disposition of property or otherwise, or all or
part of any other principal of the Trust. Each distribution pursuant to this
Section 1 to the Shareholders of a particular class or series shall be made
ratably according to the number of Shares of such class or series held by the
several Shareholders on the applicable record date thereof, provided that no
distribution need be made on Shares purchased pursuant to orders received, or
for which payment is made, after such time or times as the Trustees may
determine. Any such distribution paid in Shares will be paid at the net asset
value thereof as determined in accordance with Section 2 of this Article VI, or
at such other value as may be specified by the Bylaws or as the Trustees may
from time to time determine, subject to applicable laws and regulations then in
effect.
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Any other provisions of this Declaration or the Bylaws notwithstanding,
the Trustees may not distribute to the Shareholders (in one or a series of
distributions) during any twelve-month period any property (in cash, Shares or
otherwise) with an aggregate fair market value in excess of 110% of the income
and gains (accrued or realized) of the Trust during such twelve-month period
(the "Distribution Limit"); provided, however, a distribution in excess of the
Distribution Limit may be made if such distribution shall have been approved by
the vote or consent of a majority of the Trustees and seventy-five percent (75%)
of the Continuing Trustees.
DETERMINATION OF NET ASSET VALUE
SECTION 2. The net asset value per share of each class and each
series of Shares of the Trust shall be determined in accordance with the 1940
Act and any related procedures adopted by the Trustees from time to time.
Determinations made under and pursuant to this Section 2 in good faith and in
accordance with the provisions of the 1940 Act shall be binding on all parties
concerned.
ARTICLE VII
COMPENSATION AND LIMITATION
OF LIABILITY OF TRUSTEES
COMPENSATION
SECTION 1. The Trustees as such shall be entitled to reasonable
compensation from the Trust; they may fix the amount of their compensation.
Nothing herein shall in any way prevent the employment of any Trustee for
advisory, management, legal, accounting, investment banking, underwriting,
brokerage or other services and payment for the same by the Trust.
LIMITATION OF LIABILITY
SECTION 2. The Trustees shall not be responsible or liable in any
event for any neglect or wrongdoing of any officer, agent, employee, adviser,
subadviser, manager or principal underwriter of the Trust, nor shall any Trustee
be responsible for the act or omission of any other Trustee, but nothing herein
contained shall protect any Trustee against any liability to which he or she
would otherwise be subject by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of his or
her office.
Every note, bond, contract, instrument, certificate, Share or
undertaking and every other act or thing whatsoever executed or done by or on
behalf of the Trust or the Trustees or any of them in connection with the Trust
shall be conclusively deemed to have been executed or done only in or with
respect to their or his or her capacity as Trustees or Trustee, and such
Trustees or Trustee shall not be personally liable thereon.
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ARTICLE VIII
INDEMNIFICATION
TRUSTEES, OFFICERS ETC.
SECTION 1. The Trust shall indemnify each of its Trustees and
officers (including persons who serve at the Trust's request as directors,
officers or trustees of another organization in which the Trust has any interest
as a shareholder, creditor or otherwise) (hereinafter referred to as a "Covered
Person") against all liabilities and expenses, including but not limited to
amounts paid in satisfaction of judgments, in compromise or as fines and
penalties, and counsel fees reasonably incurred by any Covered Person in
connection with the defense or disposition of any action, suit or other
proceeding, whether civil or criminal, before any court or administrative or
legislative body, in which such Covered Person may be or may have been involved
as a party or otherwise or with which such person may be or may have been
threatened, while in office or thereafter, by reason of being or having been
such a Covered Person, except with respect to any matter as to which such
Covered Person shall have been finally adjudicated in a decision on the merits
in any such action, suit or other proceeding (a) not to have acted in good faith
in the reasonable belief that such Covered Person's action was in the best
interests of the Trust or (b) to be liable to the Trust or its Shareholders by
reason of willful misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of such Covered Person's office. Expenses,
including counsel fees so incurred by any such Covered Person (but excluding
amounts paid in satisfaction of judgments, in compromise or as fines or
penalties), shall be paid from time to time by the Trust in advance of the final
disposition of any such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such Covered Person to repay amounts so paid to
the Trust if it is ultimately determined that indemnification of such expenses
is not authorized under this Article, PROVIDED, THAT (a) such Covered Person
shall provide security for his or her undertaking, (b) the Trust shall be
insured against losses arising by reason of such Covered Person's failure to
fulfill his or her undertaking, or (c) a majority of the Trustees who are
disinterested persons and who are not Interested Persons of the Trust (provided
that a majority of such Trustees then in office act on the matter), or
independent legal counsel in a written opinion shall determine, based on a
review of readily available facts (but not a full trial-type inquiry), that
there is reason to believe such Covered Person ultimately will be entitled to
indemnification.
COMPROMISE PAYMENT
SECTION 2. As to any matter disposed of (whether by a compromise
payment, pursuant to a consent decree or otherwise) without an adjudication in a
decision on the merits by a court, or by any other body before which the
proceeding was brought, that such Covered Person either (a) did not act in good
faith in the reasonable belief that such Covered Person's action was in the best
interests of the Trust or (b) is liable to the Trust or its Shareholders by
reason of willful misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of such Covered Person's office,
indemnification shall be provided if (x) approved as in the best interests of
the Trust, after notice that it involves such indemnification, by at least a
majority of the Trustees who are disinterested persons and are not
15
Interested Persons of the Trust (provided that a majority of such Trustees then
in office act on the matter), upon a determination, based upon a review of
readily available facts (but not a full trial-type inquiry) that such Covered
Person acted in good faith in the reasonable belief that such Covered Person's
action was in the best interests of the Trust and is not liable to the Trust or
its Shareholders by reason of willful misfeasance, bad faith, gross negligence
or reckless disregard of the duties involved in the conduct of such Covered
Person's office, or (y) there has been obtained an opinion in writing of
independent legal counsel, based upon a review of readily available facts (but
not a full trial-type inquiry), to the effect that such Covered Person appears
to have acted in good faith in the reasonable belief that such Covered Person's
action was in the best interests of the Trust and that such indemnification
would not protect such Covered Person against any liability to the Trust or its
Shareholders to which such Covered Person would otherwise be subject by reason
of willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of his or her office. Any approval pursuant to
this Section 2 shall not prevent the recovery from any Covered Person of any
amount paid to such Covered Person in accordance with this Section 2 as
indemnification if such Covered Person is subsequently adjudicated by a court of
competent jurisdiction not to have acted in good faith in the reasonable belief
that such Covered Person's action was in the best interests of the Trust or to
have been liable to the Trust or its Shareholders by reason of willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of such Covered Person's office.
REBUTTABLE PRESUMPTION
SECTION 3. For purposes of the determination or opinion referred to
in clause (c) of Section 1 of this Article VIII or clauses (x) or (y) of Section
2 of this Article VIII, the majority of Trustees who are disinterested persons
and who are not Interested Persons of the Trust acting on the matter or
independent legal counsel, as the case may be, shall be entitled to rely upon a
rebuttable presumption that the Covered Person has not engaged in willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of such Covered Person's office.
INDEMNIFICATION NOT EXCLUSIVE
SECTION 4. The right of indemnification hereby provided shall not
be exclusive of or affect any other rights to which any such Covered Person may
be entitled. As used in this Article VIII, the term "Covered Person" shall
include such person's heirs, executors and administrators, and a "disinterested
person" is a person against whom none of the actions, suits or other proceedings
in question or another action, suit or other proceeding on the same or similar
grounds is then or has been pending. Nothing contained in this Article VIII
shall affect any rights to indemnification to which personnel of the Trust,
other than Trustees and officers, and other persons may be entitled by contract
or otherwise under law, nor the power of the Trust to purchase and maintain
liability insurance on behalf of such person; PROVIDED, HOWEVER, that the Trust
shall not purchase or maintain any such liability insurance in contravention of
the 1940 Act or other applicable law.
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SHAREHOLDERS
SECTION 5. In case any Shareholder or former Shareholder shall be
held to be personally liable solely by reason of his or her being or having been
a Shareholder and not because of his or her acts or omissions or for some other
reason, the Shareholder or former Shareholder (or his or her heirs, executors,
administrators or other legal representatives or, in the case of a corporation
or other entity, its corporate or other general successor) shall be entitled to
be held harmless from and indemnified against all loss and expense arising from
such liability.
ARTICLE IX
MISCELLANEOUS
TRUSTEES, SHAREHOLDERS ETC. NOT PERSONALLY LIABLE; NOTICE
SECTION 1. All persons extending credit to, contracting with or
having any claim against the Trust or a particular series or class of Shares
shall look only to the assets of the Trust or the assets of that particular
series or class of Shares for payment under such credit, contract or claim; and
neither the Shareholders nor the Trustees, nor any of the Trust's officers,
employees or agents, whether past, present or future, shall be personally liable
therefor. Nothing in this Declaration shall protect any Trustee against any
liability to which such Trustee would otherwise be subject by reason of willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of the office of Trustee.
Every note, bond, contract, instrument, certificate or undertaking made
or issued by the Trustees or by any officer or officers shall give notice that
this Declaration is on file with the Secretary of State of The Commonwealth of
Massachusetts and shall recite that the same was executed or made by or on
behalf of the Trust or by them as Trustee or Trustees or as officer or officers
and not individually and that the obligations of such instrument are not binding
upon any of them or the Shareholders individually but are binding only upon the
assets and property of the Trust, and may contain such further recital as he or
she or they may deem appropriate, but the omission thereof shall not operate to
bind any Trustee or Trustees or officer or officers or Shareholder or
Shareholders individually.
TRUSTEES AND OFFICERS GOOD FAITH ACTION, EXPERT ADVICE, NO BOND OR SURETY
SECTION 2. The exercise by the Trustees of their powers and
discretions hereunder shall be binding upon everyone interested. A Trustee or
officer shall be liable for his or her own willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of the
office of Trustee or officer, and for nothing else, and shall not be liable for
errors of judgment or mistakes of fact or law. The Trustees or officers may take
advice of counsel or other experts with respect to the meaning and operation of
this Declaration, and shall be under no liability for any act or omission in
accordance with such advice or for failing to follow such advice. The Trustees
and officers shall not be required to give any bond as such, nor any surety if a
bond is required.
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LIMITATION ON LIABILITY OF CERTAIN TRUSTEES
SECTION 3. For the sake of clarification and without limiting any
foregoing provision, the appointment, designation or identification of a Trustee
as the chairperson of the Trustees, the lead or assistant lead independent
Trustee, a member or chairperson of a committee of the Trustees, an expert on
any topic or in any area (including audit committee financial expert) or having
any other special appointment, designation or identification, shall not (a)
impose on that person any duty, obligation or liability that is greater than the
duties, obligations and liabilities imposed on that person as a Trustee in the
absence of the appointment, designation or identification or (b) affect in any
way such Trustee's rights or entitlement to indemnification, and no Trustee who
has special skills or expertise, or is appointed, designated or identified as
aforesaid, shall (x) be held to a higher standard of care by virtue thereof or
(y) be limited with respect to any indemnification to which such Trustee would
otherwise be entitled.
LIABILITY OF THIRD PERSONS DEALING WITH TRUSTEES
SECTION 4. No person dealing with the Trustees shall be bound to
make any inquiry concerning the validity of any transaction made or to be made
by the Trustees or to see to the application of any payments made or property
transferred to the Trust or upon its order.
DURATION AND TERMINATION OF TRUST
SECTION 5. Unless terminated as provided herein, the Trust shall
continue without limitation of time. Subject to the voting powers of one or more
classes or series of Shares as set forth in the Bylaws, the Trust may be
terminated at any time (i) by vote or consent of Shareholders holding at least
seventy-five percent (75%) of the Shares entitled to vote or (ii) by vote or
consent of majority of the entire Board of Trustees and seventy-five percent
(75%) of the Continuing Trustees upon written notice to the Shareholders. Any
series or class of Shares may be terminated at any time (x) by vote or consent
of Shareholders holding at least seventy-five percent (75%) of the Shares of
such series of class entitled to vote or (y) by vote or consent of majority of
the entire Board of Trustees and seventy-five percent (75%) of the Continuing
Trustees upon written notice to the Shareholders of such series or class. For
the avoidance of any doubt and notwithstanding anything to the contrary in this
Declaration, Shareholders shall have no separate right to vote with respect to
the termination of the Trust or a series of class of Shares if the Trustees
(including the Continuing Trustees) exercise their right to terminate the Trust
or such series or class pursuant to clauses (ii) or (y) of this Section 5.
Upon termination of the Trust or of any one or more series or classes
of Shares, after paying or otherwise providing for all charges, taxes, expenses
and liabilities, whether due or accrued or anticipated, of the Trust or of the
particular series or class, as may be determined by the Trustees, the Trust
shall in accordance with such procedures as the Trustees consider appropriate
reduce the remaining assets to distributable form in cash or shares or other
property, or any combination thereof, and distribute the proceeds to the
Shareholders of the series or class(es) involved, ratably according to the
number of Shares of such series or class held by the several Shareholders on the
date of termination, except to the extent otherwise required or permitted by the
preferences and special or relative rights or privileges of any classes or
series of
18
Shares. For these purposes, "ratably" shall refer to the proceeds themselves and
shall not prevent different Shareholders from receiving different forms of
property.
FILING OF COPIES, REFERENCES, HEADINGS
SECTION 6. The original or a copy of this instrument and of each
amendment hereto shall be kept at the office of the Trust, where it may be
inspected by any Shareholder. A copy of this instrument and of each amendment
hereto shall be filed by the Trust with the Secretary of State of The
Commonwealth of Massachusetts and with the Boston City Clerk (or the Clerk of
any city or town within the Commonwealth), if required, as well as any other
governmental office where such filing may from time to time be required. Anyone
dealing with the Trust may rely on a certificate by an officer of the Trust as
to whether or not any such amendments have been made and as to any matters in
connection with the Trust hereunder; and, with the same effect as if it were the
original, may rely on a copy certified by an officer of the Trust to be a copy
of this instrument or of any such amendments. In this instrument and in any such
amendment, references to this instrument, and all expressions like "herein,"
"hereof," and "hereunder," shall be deemed to refer to this instrument as
amended or affected by any such amendments. Headings are placed herein for
convenience of reference only and shall not be taken as a part hereof or control
or affect the meaning, construction or effect of this instrument. This
instrument may be executed in any number of counterparts, each of which shall be
deemed an original.
APPLICABLE LAW
SECTION 7. This Declaration is made in The Commonwealth of
Massachusetts, and it is created under and is to be governed by and construed
and administered according to the laws of said Commonwealth. The Trust shall be
of the type commonly called a Massachusetts business trust, and without limiting
the provisions hereof, the Trust may exercise all powers which are ordinarily
exercised by such a trust.
AMENDMENTS
SECTION 8. (a) Except to the extent that the Bylaws or applicable law
may require a higher vote or the separate vote of one or more classes or series
of Shares, and except as provided in paragraph (b) of this Section 8, this
Declaration may be amended at any time by an instrument in writing signed by a
majority of the then Trustees (1) when authorized so to do by a vote or consent
of Shareholders holding a majority of the Shares entitled to vote or (2) without
Shareholder approval as may be necessary or desirable in order to authorize one
or more classes or series of Shares as in Section 1 of Article III. Amendments
having the purpose of changing the name of the Trust or of supplying any
omission, curing any ambiguity or curing, correcting or supplementing any
defective or inconsistent provision contained herein shall not require
authorization by Shareholder vote.
(b) Except to the extent that the Bylaws or applicable law may require
a higher vote or the separate vote of one or more classes or series of Shares,
no amendment may be made under this Section 8 which shall amend, alter, change
or repeal any of the provisions of Article I,
19
Section 2; Article III, Sections 4, 5, 6 or 7; Article IV, Sections 1, 2, 3 or
4; each Section of Article V; Article VI, Section 1; Article VII, Section 2;
each Section of Article VIII; or this Article IX, Sections 1, 2, 3, 4, 5, 8(b)
or 8(c) unless, in each case, the amendment effecting such amendment,
alteration, change or repeal shall be effected by an instrument in writing
signed by a majority of the then Trustees and seventy-five percent (75%) of the
Continuing Trustees and shall receive the affirmative vote or consent of
Shareholders holding a majority of the Shares entitled to vote; PROVIDED,
HOWEVER, that such affirmative vote or consent shall be in addition to the vote
or consent of the Shareholders otherwise required by applicable law or by the
terms of any agreement between the Trust and any national securities exchange.
(c) Except to the extent that the Bylaws or applicable law requires a
vote or consent of Shareholders, the Board of Trustees shall have the sole power
and authority to adopt, amend, alter, change or repeal any Bylaw of the Trust,
if the resolution or writing adopting, amending, altering, changing or repealing
any such Bylaw is approved or signed by a majority of the Board of Trustees;
provided, however, that any amendment, alteration, change or repeal of Section
10 of the Bylaws, or any other Section or provision of the Bylaws determined
from time to time to be subject to the supermajority provision contained in this
clause by a majority of the Trustees and seventy-five percent (75%) of the
Continuing Trustees, shall require the approval of a majority of the Board of
Trustees and seventy-five percent (75%) of the Continuing Trustees.
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IN WITNESS HEREOF, all of the Trustees as aforesaid do hereto set their
hands this 7th day of April, 2004.
/s/ Xxxxxxx X. Xxxxx
--------------------------------------
Xxxxxxx X. Xxxxx
COMMONWEALTH OF MASSACHUSETTS )
) ss.
COUNTY OF SUFFOLK )
Then personally appeared before me Xxxxxxx X. Xxxxx, who acknowledges
the foregoing instrument to be his free act and deed.
/s/ Xxxxxx Xxxxxxxxx
-----------------------------------
Notary Public
My commission expires on: 5/25/2004
April 7 , 2004
TRUSTEE AND ADDRESS
Xxxxxxx X. Xxxxx
c/o Ropes & Xxxx LLP
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
The name and address of the resident agent of
the Trust in the Commonwealth of Massachusetts
is Corporation Service Company, 00 Xxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
TRUST ADDRESS
Western Asset/Claymore U.S. Treasury Inflation
Protected Securities Fund 3
c/o Ropes & Xxxx LLP
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
21
